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[Andres Guadamuz <a.guadamuz AT ed.ac.uk>]

Dear Jonathan,

I must second your call to have a team of learned experts in Scots law 
look at this. Being a Costa Rican excludes me as such, but I see that 
Hector has already expressed his agreement with three cheers, so should 
I perhaps propose him as the eventual leader of such an endeavour?

Should this list be renamed and called CC-ENG now?

Regards,

Andres Guadamuz
AHRB Research Centre for Studies in IP and IT Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://technollama.blogspot.com



Jonathan Mitchell wrote:

> I would have thought the most fundamental difference, in answer to Rob
> Myers, is that the CC licence has contractual effect in Scots law (bare
> promises without 'consideration' can have contractual effect). Third party
> rights are different. Remedies are different. For a treatise on Scots law,
> see a textbook! This is not just about copyright; it is about contract law.
>
> But the point is deeper. The primary purpose of licence terms is not to
> state the law which applies in any event, but to regulate potential  dispute
> between author and user. That is why, although it is not truly necessary to
> have a jurisdiction clause at all, the English licence states: "6.4.
> This Licence shall be governed by the law of England and Wales and the
> parties irrevocably submit to the exclusive jurisdiction of the Courts of
> England and Wales." But, although Prodromos says " this is a CC-England and
> Wales Licence and it has to be named accordingly", this is put forward for
> Scottish and Northern Irish users, and indeed it is headed up as being 'the'
> UK licence and is so referred to at http://creativecommons.org/worldwide/.
> That is profoundly misleading and indeed offensive. If this is so
> unimportant, why not publish a UK draft which provides for exclusive
> jurisdiction in Scotland?
>
> Now I quite appreciate that from an English perspective all this is a storm
> in a teacup. No problem. Publish this as an English licence and leave the
> Scottish terms to the Scots.
>
> I suggest that this be published as what it is, an English law licence, and
> a Scottish licence could then be drafted in Scotland by a team with a
> background of Scots law, using the foundation of this draft, rather than the
> suggestion now made that an English team based in Oxford should do so. I do
> appreciate that that is how the Empire was ruled. But those days are gone.
> It wouldn't take long to do a Scottish draft; 95% of the work has been done.
> The present team has indicated however that the remaining 5% is beyond their
> interest and/or expertise. And why should it be within either? I wouldn¹t
> have the nerve myself to publish a contract for use under another system of
> law (and my professional insurance cover wouldn't protect me if I did!).
> That is surely the point of 'national' projects under CC.
>
> So I have now suggested to Christiane Asschenfeldt that a Scottish project
> be set up which can build on this work, rather than the mare's nest of a
> supposedly three-jurisdiction agreement dominated by one jurisdiction. Is
> there however a strongly-held view in the English team that it is essential
> that this be run from England?
>
> Jonathan
> --
> Jonathan Mitchell QC
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